Karnataka High Court
Manikya S/O Lachmya Pawar vs The State Of Karnataka on 24 July, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JULY 2019
PRESENT
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
AND
THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL APPEAL NO.3534/2012
BETWEEN:
MANIKYA S/O LACHMYA PAWAR
AGE: 35 YEARS, OCC: BEGGAR
R/O SHANKARGAON
TQ. PANDARPUR
DIST. SHOLAPUR (MAHARASHTRA)
...APPELLANT
(BY SRI MAHANTESH DESAI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH REVOOR P S AT REVOOR
TQ. AFZALPUR
DIST. GULBARGA
REPRESENTED BY
ADDL. SPP HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
... RESPONDENT
(BY SRI PRAKASH YELI, ADLL. SPP)
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THIS CRL.A FILED U/S. 374(2) of CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE PASSED BY THE HON'BLE COURT FAST TRACK-III
AT GULBARGA, IN S.C. NO.285/2005 ON DATED 23.08.2007 BY
ALLOWING THE APPEAL AND CONSEQUENTLY ACQUIT THE
APPELLANT / ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE
U/S 460, 394, AND 302 OF IPC.
THIS APPEAL HAVING BEEN HEARD, RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, ASHOK G. NIJAGANNAVAR J., DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/accused being aggrieved by the judgment of conviction and order of sentence dated 23.08.2007 passed by the Fast Track-III, Gulbarga, in Sessions Case No.285/2005 for the offences punishable under Sections 460, 394 and 302 read with Section 34 IPC.
The appellant/accused Manikya is convicted and sentenced to undergo rigorous imprisonment for 5 years and also to pay a fine of Rs.1,000/- for the offence U/Sec.460 IPC and in default to undergo further 3 imprisonment for six months. The accused is sentenced to undergo rigorous imprisonment for 5 years and also to pay a fine of Rs.1,000/- for the offence U/Sec.394 IPC and in default, to undergo further imprisonment for six months. Further the accused is sentenced to undergo imprisonment for life and also to pay a fine of Rs.5,000/- for the offence U/Sec.302 IPC in default, to suffer imprisonment for one year.
2. The prosecution case in brief is that the complaint was filed by Siddamma who is daughter of the deceased victim wherein it is alleged that on 16.04.2004 night at about 8:00 p.m. after having the dinner, the complainant, her parents and her children were sleeping in front of their house. During night at about 3:00 a.m., on hearing the cry of their father, the complainant and her mother woke up and saw two unknown persons were holding the hands of her father, the third person took the axe kept there and assaulted her father. By looking at the 4 scene, the complainant started shouting that thieves have come. Her mother also started shouting for the help. When the complainant held the baniyan of the one of the persons, he assaulted with knife on her abdomen. As a result of which there was a bleeding injury. The said third person was wearing black shirt and shando baniyan. The person who assaulted with knife snatched golden chain and taali chain from her neck. When her mother came to rescue her, another person caught hold in his arms meanwhile the said accused pulled/snatched taali chain of her mother. One of them snatched ear ring of left ear of the complainant's mother. Thereafter, the said persons are escaped in the dark. They have also taken away Rs.15,000/- kept inside the house in the box. Later villagers came and took the complainant and her father to Kalaburagi Government hospital in the morning at about 6:00 a.m. for medical treatment. Initially the case was registered on the complaint filed by one of the injured victim for the offences punishable under Sections 394 IPC. 5 Thereafter, on the requisition of the PSI of Brahmpur police station reporting the death of injured victim namely father of the complainant, Section 302 IPC was inserted. After completion of investigation, the charge sheet was filed against the accused persons for the offences punishable under Sections 394 and 302 IPC.
3. After committal of the case to the Sessions Court and on appearance of the accused persons, charges were framed for the aforesaid offences. The trial was concluded. In order to prove the case, the prosecution has examined 17 witnesses as PWs.1 to 17. The documents are marked as Exs.P1 to P17. One document namely certified copy of deposition of Bhagapa in the S.C.No.284/2005 was marked as Ex.D1. The material objects are identified and marked as Mos.1 to 15. After recording the evidence, the statement under Section 313 Cr.P.C. was recorded. On hearing arguments and appreciating the evidence on record, accused Manikya was 6 held guilty of the offence alleged against him and sentenced to undergo punishment for the aforesaid offences.
4. Being aggrieved by the judgment of conviction and sentence, the appellant/accused has preferred this appeal contending that the judgment of the trial court is not maintainable in law. The incident has taken place in the dark night in the land of injured victim. In the complaint it is stated that some unknown persons committed offences. The identification of accused persons is not proved by the prosecution beyond reasonable doubt. There are only two eyewitnesses. The court below has not appreciated the evidence properly.
5. The improvement made in the examination-in- chief by PW.1-Siddamma and her mother PW.2-Gangabai are not at all considered by the court below and has come to the wrong conclusion. The Investigating Officer has admitted that the photos of the appellant-accused No.1 7 were shown to the complainant PW.1-Siddamma and PW.2-Gangabai and the appellant was identified by looking at the photo. The appellant was arrested on 02.02.2005. But after his arrest, no identification parade was held. The seized weapon namely the axe is not sent FSL to seek opinion. The conviction is based on unreliable evidence placed on record.
6. Heard the arguments of learned counsel for the appellant and learned Addl. SPP for the respondent-State. Perused the records.
7. Learned counsel appearing for the appellant by taking us through the evidence placed on record strenuously contended that the evidence of the prosecution is not at all sufficient and reliable to prove the identity of the appellant and also the offence alleged to have been committed by him. There is no cogent evidence to show his presence at the spot. In the instant case, no identification parade was conducted. There is no 8 explanation as to why it was not conducted. The very presence of the appellant at the spot is doubtful. It is only on the basis of the photographs of the accused shown in the police station and later identified in the court which is very much doubtful. The recovery of the material objects is also doubtful. There is inordinate delay in recovery of material objects. The entire judgment of conviction is based on the surmise and conjectures as such the same cannot be sustained in law.
8. The learned counsel further argued that the police had no information or knowledge about the accused immediately or within few days. Even on 31.7.2004 the police suspected the involvement of the accused but the alleged incident has taken place on 17.4.2004. There is no proper description of the accused by the complainant and there is no mention of light on the date of the alleged incident at the spot. The accused is said to have shown within 2-3 months but the recovery was done on 2.2.2005. 9 The panch witnesses to the recovery panchanama have turned hostile. The complainant is said to have been injured but no injury certificate has been produced. There are several glaring inconsistencies but the trial court has failed to consider the same.
9. In support of his argument, the learned counsel for the appellant has relied on the following decisions :-
1) 2014 Cr.R. 636 (S.C.) Supreme Court of India in the case of Timmareddy and Others .Vs. State of Karnataka and
2) 2015 Cr.R. 731 (Kant.) Karnataka High Court in the case of Srinivasa @ Seena and Another .Vs. State of Karnataka.
10. Per contra, learned Addl. SPP submitted that the injured victim namely the complainant and her mother have stated that they have clearly identified the accused. As per the information given by the accused no.3 (Juvenile Tanaji) this accused was apprehended. PWs.1 and 2 have 10 identified the accused before the court and also identified the photograph shown to them in the police station which is marked as Ex.P-2. On the basis of the voluntary statement of the accused-appellant, the recovery has been done. Ex.P-8 is the seizure mazhar of the photograph which has been identified by these victims. The evidence of these injured witnesses is quite consistent. Even the recovery of incriminating materials is corroborating with the evidence of PWs.1 and 2. There are no doubtful circumstances to disbelieve the prosecution case. As such, there are no grounds to interfere with the judgment of conviction and sentence.
11. Having heard the arguments of the learned counsels, before adverting to the material evidence on record, we feel it just and necessary to have a glance at the prosecution evidence. PW-1 Smt.Siddamma is one of the injured victim who has filed the complaint on 17.4.2004. PW-2 Smt.Gangabai is also one of the injured 11 eye witness to the incident. She has narrated the incident as stated in the complaint by P.W.1 Smt.Siddamma. PW-3 Narasingrao is inquest panch for Ex.P-3. PW-4 Sharanappa Mugali is the panch witness for spot mazhar Ex.P-4. PW-5 is Dr.K. Devindrappa, who has issued the wound certificate. PW-6 is the panch for seizure panchanama of photo of accused person as per Ex.P-8. The photo of accused is marked as Ex.P-2. PW-7 is the police constable who has collected the clothes found on the dead body after post mortem and produced them in the police station. PW-8 Mallikarjun is the police constable who has carried FIR. PW-9 Shivaputrappa is the Head Constable who has carried the articles to FSL examination and his report is at Ex.P-10. PW-10 is the police constable who arrested the accused Tanaji - Juvenile Offender on 31.7.2014. PW-11 Abdul Mannan is the Assistant Engineer who has drawn the sketch of place of offence as per Ex.P-12. PW-12 Bhagappa is the panch witness for seizure panchanama. PW-13 Revanasiddappa is one of the 12 relative of the complainant and hearsay witness. PW-14 M. Pandurangaiah is the CPI. PW-15 Dr.Makaprakash is the Doctor who has conducted the post mortem of complainant's father Basanna and issued post mortem report as per Ex.P-14. PW-16 Sudhir Hegde is the CPI who has investigated the case and filed the charge sheet. PW-17 Veerabhadrappa Khadi is the PSI who registered the case and conducted panchanama.
12. In view of the submission of the learned counsel for the appellant and learned HCGP, this Court has to re-appreciate the material evidence on record of following circumstances :-
i) Homicidal death;
ii) Motive;
iii) Identification of accused;
iv) Reliability of evidence of injured witnesses;
v) Recovery of incriminating articles;
13. HOMICIDAL DEATH :- As far as the
homicidal death is concerned, there is no much dispute. 13 The learned counsel for the appellant - accused has not disputed the death of the deceased but according to the learned counsel, the accused persons are not the perpetrators of crime. The inquest mazhar and the evidence of the injured eye witnesses disclose that the deceased had sustained severe injuries on account of the assault by using the axe. The injured witnesses have stated that the deceased died due to the injuries stated in the inquest report as per Ex.P-4. The inquest report fully corroborates with the evidence of injured witnesses.
14. PW-15 Dr.Makaprakash who has conducted the post mortem examination issued report as per Ex.P-
14. He has stated that there are several sutured wounds, cut lacerated wounds on the forehead. There were internal injuries namely i) A fissured fracture of frontal and left parietal bones measuring 3" in length; ii) A gutter fracture of right parietal bone measuring 1 ½" X 1", iii) Fracture of both nasal and both maxillary bones, which are 14 communited fractures; iv) Right side 3 permanent molars and second premolar of upper jaw are intact, rest of the tooth in upper jaw are dislocated from the socket, tooth in the lower jaw are intact and v) Old healed fracture of right tibia at the level of upper 2/3rd and lower 1/3rd. According to him, the cause of death is carniocerebral injuries leading to shock and haemorrhage. The aforesaid injuries are the main cause for the death of the deceased which are said to have been caused by assaulting with axe. Therefore, the prosecution has successfully established the homicidal death of the deceased.
15. MOTIVE :- In the present case, the averments made in the complaint clearly goes to show that the accused persons had gone to the house of the complainant in the night at about 03.00 a.m., for committing robbery/dacoity. The very circumstance of the accused tresspassing in the house/land of the complainant at the odd hours clearly goes to show the 15 intention of the said persons. We are conscious of the fact that the motive circumstance alone cannot be proved by the prosecution. The said circumstance can be used as a strong corroborative piece of evidence with other material available on record. It has to be borne in mind that if the prosecution proves the case beyond reasonable doubt and if the motive is not proved, it is not fatal to the prosecution case. If the prosecution is able to prove the guilt of the accused other than the motive, it is sufficient. If existence of certain motive, however remote it may be, is proved then it will strengthen the case of the prosecution in order to ascertain the gravity of the offence.
16. In the present case, the injured victims have clearly stated that the accused persons had entered their premises at odd hours with the sole intention to commit the robbery and act of these accused persons snatching the Tali Chain from the complainant and the chain and ear ring of her mother and taking away the cash of 16 Rs.15,000/- kept in the house clearly indicate that the accused had come with the intention of committing robbery/dacoity.
17. Identification of Accused & Reliability of evidence of injured witnesses :- During the course of arguments, learned counsel for the accused - appellant has taken a specific defence that on the date of the alleged incident, there was no light and there was no specific averment in the complaint that the injured witnesses have seen the accused as there was light at the said place. Another defence taken up is that in the present case no identification parade is conducted. Thus merely on the basis of the identification of the accused by the injured witnesses in the police station is fatal to the prosecution case.
18. Learned Addl. SPP submitted that even assuming that there was no light, the presence of the accused can be identified when the assailants were in the 17 close proximity while assaulting the victims. In the present case, the accused persons have pulled the Tali Chain of the victim and also snatched golden chain of her mother. As such, they had ample opportunity and sufficient time to look at the accused persons who were committing these acts. They have also seen these accused assaulting complainant's father Basanna with axe. There is no evidence that the accused persons had covered their faces. As such, there is no doubtful circumstance to disbelieve their evidence for the reason that there was darkness. In this connection, learned Addl. SPP has relied on a decision reported in 2015 Cr.R. 755 (Kant.) in the case of Kariyappa .Vs. State of Karnataka, in paragraph 35 and 36 observed as under :-
35. The God has given us the eyes for the external beauty of the face and also for the vision. The vision begins when light rays are reflected off an object and enter the eyes through the cornea, the transparent outer covering of the eyes. The cornea bends or 18 refracts the rays that pass through a round hole called the pupil. The pupil contracts and expands depending upon the amount of light, whether it is bright or dark, it controls the entry of the light or block the amount of light, whether it entering the eyes depending upon the situations. One of the most amazing things about human vision is the incredible range it has. It is our experience that we can see very bright light object in sun light and we can also see objects in nearly total darkness. The range that our eyes have comes from different parts of the eyes.
36. First of all, it is impossible to see anything in total darkness. What is total darkness? Total darkness means the absence of any light, and our eyes depend on light to see. With that it can be said that it is quite rare to be in a situation with total darkness, even at night. City lights reflecting of of clouds, vehicle headlights, the moon, the stars and even the airglow of the night sky itself fill the night with faint light. Most of our experiences show that darkness are actually cases of 19 partial darkness; and not total darkness where there is still a small amount of light present.
With enough time, our eyes can adapt and see the low levels of light present in partial darkness."
19. Admittedly, the alleged incident has taken place during night hours when the complainant Siddamma, her mother were sleeping inside and their father was sleeping in front of their house. No doubt the complainant has not given any specific details about the appearance of the accused, that itself is not a doubtful circumstance to hold that they have not seen the accused. PWs-1 and 2 who are the injured witnesses have clearly stated in their examination in chief that they have seen the accused in the light put in front of their house. PW-1 has stated that the electric light was put in front of the house but it was not all that bright. Non mentioning of light in the complaint on the date of the alleged incident at the spot in the complaint cannot be a glaring 20 circumstance to disbelieve the contention that the injured witnesses had no opportunity to see the accused persons on the date of the alleged incident.
20. Regarding identification parade, learned counsel for the appellant submitted that the police have not conducted the test identification parade. As such, the identification only on the basis of the appellant-accused and his photograph shown in the police station itself is fatal to the prosecution case. In this connection, the counsel for the appellant has relied on the following decisions :-
1) 2015 Cr.R. (Kant.) in the case of Naga @ Nagaraja and Others vs. State by Banashankari Police, wherein it is held as under:
"Penal Code, 1860 - Sections 457, 342 and 395 - House trespass and dacoity - Conviction - When incident has takenplace in residential locality, no independent witnesses are examined by prosecution to prove guilt of 21 accused - Non-conducting of test identification parade is a serious drawback to prosecution case which is not considered by Trial Court while convicting accused - Even if witnesses identified accused appellants during course of trial no importance can be attached to their evidence because photographs of accused were already shown to witnesses in Police Station before commencement of trial - Conviction and sentence set aside - Appeal allowed."
2) 2014 Cr.R. 636 (S.C.) in the case of Thimmareddy and others .Vs. State of Karnataka, wherein, it is held as under -
Penal Code, 1860 - Sections 397 and 120B-Robbery and conspiracy-Reversal of acquittal by High Court - Trial Court found serious loopholes in the mannner in which investigation was carried out leaving serious flaws - Trial Court did not believe version of eye witnesses, faulty TIP as well as legality of recoveries at instance of accused persons - Trial Court has indulged in wholesome discussion while discarding testimony of eyewitnesses - High Court committed grave error in recording conviction solely on the basis 22 of statement of so-called eye witnesses - Judgment of High Court holding appellants guilty of offence is unsustainable - Appeal allowed.
21. Relying on the aforesaid decisions, learned counsel for the appellant submitted that failure to conduct test identification parade raises serious doubt about the testimony of injured eye witnesses or conducting faulty test identification parade raises a serious doubt about the testimony of injured witnesses.
22. As against the contention of the counsel for the appellant, learned Addl. SPP submitted that even in the absence of test identification parade, if there is a reliable evidence by the injured eye witnesses to prove the guilt of the accused, the same can be considered. In that connection, he has relied on following decisions :-
23. In a decision of the Hon'ble Apex Court in the case of Ravi Kapur vs. State of Rajasthan reported in (2012) 9 SCC 284, it is held as under:
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"35. ....The Court identification itself is a good identification in the eye of the law. It is not always necessary that it must be preceded by the test identification parade. It will always depend upon the facts and circumstances of a given case. In one case, it may not even be necessary to hold the test identification parade while in the other, it may be essential to do so. Thus, no straitjacket formula can be stated in this regard."
24. In another decision of the Hon'ble Apex Court in the case of Ashok Debbarma vs. State of Tripura, reported in (2014) 4 SCC (Cri) 185, it is held as under:
"20. ..... The primary object of the test identification parade is to enable the witnesses to identify the persons involved in the commission of offence(s) if the offenders are not personally known to the witnesses. The whole object behind the test identification parade is really to find whether or not the suspect is the real offender. In Kanta Prashad v. Delhi Admn., this Court stated that the failure to hold the test identification parade does not make 24 the evidence of identification at the trial inadmissible."
25. As far as the decision relied on by the counsel for the appellant in the case of Thimmareddy and others .Vs. State of Karnataka reported in 2014 Cr.R. 636 (S.C.), the observation made by the Hon'ble Supreme Court is on the basis of the factual aspects. In the said case, all the injured witnesses have stated that all those persons who boarded the bus for committing dacoity had covered their faces. As such, there was no question of identification of the said accused persons by any of the witnesses and it is not at all stated by any of the witnesses as to when those accused removed the karchief which can be seen by these witnesses. Based on this reasoning and also pointing out the faulty test identification parade, the Hon'ble Supreme Court was of the opinion that the evidence of eye witnesses was not reliable to hold the accused guilty. In the instant case, PWs-1 and 2, the injured eye witnesses 25 have clearly stated that when the accused persons were assaulting them and their father, they have tried to resist which clearly goes to show that they were in a very close proximity to look at the accused persons and there is no evidence to show that these accused had covered their faces so as to conceal their identify. Thus in our humble opinion, the decision relied upon by the counsel for the accused are not clearly applicable to the facts of this case.
26. As already stated above, PWs-1 and 2 are the injured witnesses. P.W.1 complainant Smt.Siddamma has stated in her evidence that on the date of the incident, she along with her children, mother and brother were sleeping inside the farm house. Her father Basanna and brother Hanamantaraya were sleeping in front of the house. During night at about 3.00 a.m., on hearing the cry of her father Basanna, the complainant PW-1 and her mother PW-2 woke up and saw three persons were assaulting her father. One of the accused assaulted with axe which was 26 kept by her father with him. When the complainant tried to prevent the accused persons from assaulting her father, one of the accused assaulted her with Jambia (long knife) and they all abused her in filthy language. Meanwhile, when her mother came to rescue her, the accused persons assaulted her mother on the head with axe and they snatched one ear ring. Therefore, her mother removed another ear ring and handed over to them. Thereafter, the accused persons snatched the Tali Chain which was having 9-golden beats. Those accused snatched Talichain from the complainant PW-1 which was having 4-gold beats and karimani. Thereafter, one of the accused went inside the house and took the cash of Rs.15,000/- which was kept in the box inside the house. After that, all of them fled away from the spot. She has seen this incident as there was light and she can identify all the said three accused persons. PW-1 has identified the accused before the Court and has stated that he had also came with other accused and the accused before the court has assaulted 27 with the Jambia on her abdomen. The person who assaulted her father with axe has also assaulted her mother Gangabai with the said axe. One of the accused went inside the house and robbed the amount. After that when they shouted for help, some persons of Goudgaon village came to the spot and they took them to the hospital. The said persons had informed Revoor Police Station over phone. When PW-1 was admitted in the hospital, the police have recorded her statement and have taken her LTM. She has taken the medical treatment for 7-days in the hospital. Her father Basanna succumbed to injuries in Gulbarga Government Hospital. Her mother PW-2 Gangabai was discharged from the hospital. After discharge, the police had called them to Afzalpur police station and recorded their further statement. On that day, the police have shown the battery to them. The police have also shown the golden ear ring and golden beats to her mother in the police station. The witness has identified the battery which is marked as MO-1. 9-golden beats, 2- 28 Golden talies and one golden ear ring having red stone are identified and marked as Mos-2 to 4. PW-1 has also identified the axe which was used by the accused for assaulting her father ( the axe which has been identified by this witness was seized in Revoor Police Station Crime No.20/2004 (SC No.284/2005 ) as the accused had used the said weapon for assaulting the complainant in S.C.No.284/2005 ) which was recovered as per the voluntary statement of the accused Manikya. This witness is cross examined at length but nothing worth is elicited. PW-1 has stated that when she was in the hospital, the police have recorded her statement as per Ex.P-1. She has admitted that there are several mango, neem, babool and other trees in the farm land of her father. Further she has stated that the accused have abused her in kannada language by saying "Ye Randi Nanna Baniyan Hidiyuti Anta". After assaulting them, the accused disappeared. She has denied the suggestion that after discharge from the hospital, PW-1 and her mother have gone to Afzalpur 29 police station only once and thereafter they have not gone there. Further she has stated that the accused before the Court has assaulted her father with axe on face and head. Another accused assaulted with Jambia on her abdomen. She has admitted that on that day, due to the darkness, the face were not visible but she has voluntarily stated that there was light in their farm house as such, she has seen the incident. She has denied the suggestion that she has not mentioned about the light in her complaint as per Ex.P-1 complaint and has further stated that the light was put in front of their house by passing the wire through mango tree. She has denied suggestion that she is deposing false evidence that the accused before the court has assaulted her father Basanna with axe. Further, she has stated that when they had gone to Afzalpur police station, Mos1 to 4 were shown to them.
27. PW-2 Gangabai is also injured witness who was assaulted by the accused persons with axe on her 30 head. Accused have snatched one of the ear ring, one Tali having 9-golden beats. She has given same evidence as that of PW-1 namely her daughter Smt.Siddamma who is also injured witness. She has stated in her examination in chief that on the date of the alleged incident, at about 03- 00 a.m., by hearing the galata, she came out of the house along with her daughter Siddamma and at that time three persons were assaulting her husband with axe which was kept by her husband. When her daughter started shouting for the help, the accused started abusing them and one of the accused assaulted with knife to PW-1 Siddamma on right side of her abdomen. One of the accused assaulted on her head with the handle of the axe. Thereafter, the accused persons snatched one golden Tali having 9-beats and one ear ring from her. Another ear ring was handed over by her. PW-2 has requested the accused not to assault to her husband. Out of the said three accused persons, one of them went inside the house and robbed Rs.15,000/- kept in the box. After that, they took away 31 the axe and battery. After sometime, the villagers of Goudgaon came and took them to the hospital and they have also informed to the Revoor Police Station. After the death of her husband in the hospital, they brought the dead body to their village for cremation. After 10-15 days, they were called to Afzalpur Police Station and have recorded their further statement. After one or two months, they were again called to Afzalpur Police station and informed them that they have apprehended one of the accused. When the said person was shown to them, they have identified him as they had seen him also on the date of the incident in the light put in front of their farm house. PW-2 has identified the accused before the Court. The police have told them that the remaining accused were not traced.
28. PW-2 has further stated that she had seen three accused persons who were all aged between 20 to 30 years. (The remaining two accused are not yet traced.) 32 When they had gone to Afzalpur Police station the police had shown the accused and had also informed his name is Manikya. In addition to that, the photograph of said accused Manikya was also shown to them is identified by the witness in the court which is marked as Ex.P-2. She has also identified the golden articles, i.e. Tali of 9-golden beats and one ear ring which are marked as Mos-1 to 4. The axe is identified and marked as MO-5 and she has stated that on the date of the incident, her husband Basanna had kept MO-1 Battery and MO-5 Axe with him. Further she has stated that one of her ear ring had fallen on the ground. The said ear ring is with her. She has identified the teeth, blood stained towel, dhoti and underwear of her husband and blood stained blouse of her daughter and they are marked as Mos-6 to 11.
29. In the cross examination, she has stated that the villagers by name Sharanappa CW-4 and Dattu CW-5 took them to Gulbarga hospital. The axe used by the 33 accused was blood stained. On the said night, she has seen the accused persons in the light. The accused have thrown Karimani chain after collecting the golden beats. When they had gone to the police station, the person shown to her was aged 12-13 years. On that day, the accused Manikya was also there in the police station. The police have shown battery, axe and other gold articles to her. Further, she has stated that once she had gone to Revoor Police Station and thereafter she was called to Afzalpur Police Station. She has denied the suggestion that she is deposing false evidence that she had seen accused Manikya in the light put in front of her house and thereafter they have seen him in the police station. She has denied the suggestion that, on the date of giving evidence, the accused Manikya was shown to her by the police. Despite making lengthy cross examination, nothing is elicited to prove that the accused could not be seen and identified by these two witnesses.
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30. In the present case, except these two witnesses who are the injured victims, there are no other independent eye witnesses. Thus we are conscious of the legal position that when the injured victims such as interested witnesses are there, normally, the courts should meticulously examine the witnesses to overcome all the grounds raised with regard to acceptability of such witnesses. There is no bar under any law for the time being in force which say that conviction cannot be recorded on the basis of statement of solitary eye witnesses or the injured victims. However, the quality of the evidence placed before the court has to be decided by other circumstances in the case. In the present case, there is consistent evidence of these two injured eye witnesses. There are no glaring discrepancies or variations or contradictions in their evidence so as to disbelieve their evidence.
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31. As far as test identification parade is concerned, in a recent decision of the Hon'ble Apex Court reported in (2010) 6 SCC 1 between Sidhartha Vashisht @ Manu Sharma and State (NCT of Delhi), the Hon'ble Apex Court had an occasion to deal with Section 9 of the Indian Evidence Act. It is observed at Head Note ZD with reference to the Test Identification Parade, which reads thus -
"Sections 9 & 8 - Test identification Parade
- Evidentiary value - Held, photo identification/Test Identification Parade are all aids in investigation and do not form substantive evidence - Substantive evidence is evidence of witnesses in court on oath - To say that photo identification is hit by S.162 of Cr.P.C. is wrong - Even Test Identification Parade before Magistrate would otherwise be hit by Section 162 Cr.P.C. - Logic behind TIP/photo identification is that where an accused is not known to witnesses, IO conducts TIP to ensure that he has got the right person as accused - Practice is not borne out of 36 procedure, but out of prudence - At best TIP can be brought u/s.8, as evidence of conduct of witness in identifying accused in presence of IO or Magistrate during investigation."
(emphasis supplied) At Head Note ZE paragraphs 255 and 258, it has further observed by the Hon'ble Apex Court that -
"Criminal Trial - identification of accused
- Dock identification in court without previous Test Identification Parade -
Admissibility/Evidentiary value - Held, even when there is no previous TIP, court may appreciate dock identification as being above board and more than conclusive - Dock identification is substantive piece of evidence and even in absence of TIP no prejudice is caused to prosecution case - Photo identification was resorted to vis-à-vis PWs.1 to 4 - Hence held, no merit in contention of defence that dock identification was farce."37
At Head Note ZB paragraphs 246-249 and 258, it has further observed by the Hon'ble Apex Court that -
"Test Identification Parade - Refusal to submit to - Effect - Adverse inference - Main accused M refusing Test Identification Parade on the ground that his photograph had appeared in the newspapers, his photograph was shown to witnesses, and that he himself was physically shown to witnesses - M surrendering on 6.5.1999 and produced in muffled face before Metropolitan Magistrate held, all three contentions of M. are incorrect and misconceived. Hence, refusal to submit to Test Identification Parade was unjustified and adverse inference needs to be drawn therefor."
(emphasis supplied)
32. In view of the above said decision, in our opinion, the identification before the court play a dominant role irrespective of what had happened prior to the witness identifying the accused before the court, on 38 the basis of his remembrance of seeing the accused persons at the time of the incident. If the accused persons were shown to the witnesses earlier, it may not be a serious error, if the witness had candidly specifically identified the accused before the court of law. There must be some reason in the evidence of such witnesses to discard the evidence placed before the court. There must be some elucidation in the evidence of such witness, it should be conspicuously apparent on the face of the evidence of that witness to discredit him. It is also to be borne in mind that normal and natural conduct of Police is that if any complaint is lodged to the police by a person who was totally unknown, a stranger and the police registers a case against some unknown persons at the initial stages, of course there must be some indication about the identifiable features of the accused. On such complaint, whenever the police incur a suspicion and on such suspicion if the accused is arrested in connection with some other case, and he suspects about the 39 involvement of accused in connection with some other case, then the natural and expected approach of the police would be to call the witness to the Police Station and show the accused to him. There is absolutely no procedure so far as this attitude of the police which debars them from calling the witness to the Police Station under any law for the time being in force recognized, much less in the Cr.P.C. It is seen from many of the cases (as noted supra) all over the world, the police can only work in this fashion, because this is a fundamental approach. Therefore, that itself cannot be in our opinion a ground to discard the evidence of PWs-1 and 2 in this case, if their evidence is otherwise acceptable, trustworthy and credible in nature. However, this circumstance also cannot be simply ignored by the court. The courts have to meticulously consider this lapse or intention of Police with reference to evidence of such witness, before accepting the testimony. In this backdrop, now we would like to discuss the cross examination of this witness.
40
33. Regarding identification of the accused in the court, the witness though stated that they have seen the accused persons in the Police Station on 2.2.2005, but there is no suggestion that only because of that reason they are able to identify the accused in the court. On the other hand, the witnesses have categorically stated that they have seen the accused persons at that particular place because of happening of ghastly incident in their presence and blood fallen on the ground. Therefore, it must have been imprinted in the mind of these witnesses. Therefore, in the absence of any other doubtful circumstances, the evidence of such identification cannot be disbelieved.
34. Regarding recovery of incriminating articles :- In the present case, PWs-1 and 2 have stated that the accused Manikya was shown in the police station and his photograph at Ex.P-2 was also seized through panchanama which is supported by the evidence of the 41 panch witnesses namely PW-6 Vijaykumar Desai. He has stated that about two and half years back, he was called by the Afzalpur police station and another panch witness namely Veeranna Biradar was also there. Few photographs were shown to them and out of those, one photo was shown by saying that the said person has committed the murder of Dattatraya. The said photograph was seized by drawing panchanama as per Ex.P-8. In the cross examination, he has stated that when he had gone to police station, 5-6 ladies and 2-3 gents were sitting there. The police had kept 7-8 photos there along with xerox/photo copies.
35. During the course of arguments by referring to the evidence of this witness, the counsel for the accused tried to raise the doubt as to why the photo was shown to this witness. But, it is pertinent to note that this witness was called for only seizure of photo and not for identification of accused in photo. PW-6 has stated that 42 5-6 ladies and 2-3 gents were there. The said persons were called for identification. Thus there are no doubtful circumstances to dis-believe these panch witnesses.
36. Another panch witness namely PW-12 Bhagappa is the witness for seizure panchanama for recovery of Mos-1 to 4, 2-golden Talis, 9-golden beats, 1- gold ear stud which are marked as Mos-1 to 4. He has stated that the said articles were produced by accused Manikya in his presence. At the time of seizure, accused Manikya has stated that Mos-1 to 4 articles were taken by him and other accused. This witness has identified the accused Manikya before the Court and has stated that Mos-1 to 4 articles were produced by him in his presence and they were seized by drawing panchanama as per Ex.P-13.
37. During the course of cross examination, he has stated that himself and CW-9 Hanmanth had gone to the police station. The plastic bag produced by the accused 43 was received by the police and he has further stated that said articles were kept in plastic cover which was received by the police. He has admitted that the police officials have not weighed the gold articles and he did not confirm they were gold articles or not. He has denied the suggestion that he has not put his signature in the police station and accused was not shown to him in the police station and Mos-1 to 4 were not recovered from accused Manikya. He has admitted that on 1.3.2007 he has given evidence against the same accused Manikya in S.C.No.286/2005 and he has stated that after drawing of Ex.P-10 on 2.2.2005, the police have taken his signature and at that time no other person was there and any articles were not seized. He has admitted the deposition in SC No.284/05 shown to him which is marked as Ex.D-1. The counsel for the appellant by referring to this admission made by the witness PW-12, submitted that the evidence of this witness cannot be relied as the said witness has turned hostile in another Session's case and 44 there is no explanation as to why the articles seized were not sealed. But, this circumstance of turning hostile in another case cannot be considered as a doubtful circumstance as he has categorically stated about the seizure of gold articles in his presence and drawing of mazhar Ex.P13 in this case.
38. PW-14 is the CPI who has conducted part of the investigation. He has stated that on 27.4.2004 he has recorded the statement of one of the injured witness namely PW-2 Gangabai and on 30.4.2004 and later on 31.7.2004 he has recorded further supplementary statement of complainant Siddamma and on the same day the further statementof Gangabai was also recorded. On the same day, i.e. on 31.7.2004, PW-10, CW-21 and CW-19 produced the suspected accused by name Tanaji. On enquiry, it was learnt that the said accused along with his brother Manikya and relative Dashrath had gone to the garden land at Goudgaon village and they have 45 committed the offence. The voluntary statement of said accused was recorded. Thereafter, in the presence of panch witnesses namely PW-6 Vijaykumar and CW-6 Veeranna, few photographs were shown to Tanaji. On going through the said photographs, the accused Tanaji identified his brother namely accused Manikya. Therefore, the said photograph was seized in presence of panch witnesses as per Ex.P-8. The photograph is marked as Ex.P-2. On 31.7.2004 the accused Tanaji was again produced before him, at that time, the injured witness namely Siddamma, her mother Gangabai, Revanasiddappa, Chadrashah and Siddalingappa were there and his voluntary statement was recorded. He has admitted that the accused Tanaji was not knowing Hindi and Kannada language but he knew Marathi language. The photographs shown to accused were in the MOB records of the criminals of the police station. Some of the seized articles Mos-7 to 15 were sent to FSL for 46 examination through PW-9 the Constable and he has submitted the report as per Ex.P-10.
39. In the cross examination, he has stated that he do not remember how many trees were there in the garden land at Goudgaon village. The accused Manik was involved in several other criminal cases. The photographs of the criminals involved in other cases will be available in DCRB police units but he cannot say from which records he has taken Ex.P-2 photograph of accused Mankya. But there is a record in that regard. He has denied the suggestion that whenever the officials go in search of the accused to other States, they shall have to take the permission of the higher officers of the concerned State. He has further stated that on that day he had sent his staff by giving oral direction to trace the accused person. Further he denied the suggestion that on 31.3.2004 when PWs-1 and 2 and two others by name Revanasiddappa and Chandrashah had came to the police station, the articles namely battery, 47 axe, gold articles were already there in the police station and the accused Manikya was also there in the police station before arrival of the witnesses. The evidence of this witness clearly goes to show the recovery of Mos-1 to 4 articles which are identified by PWs-1 and 2 injured eye witnesses through panchanama in the presence of panch witnesses. Even in the cross examination, nothing worth is elicited to disprove the recovery of these articles.
40. PW-16 is another CPI who has conducted the remaining part of the investigation and has submitted the charge sheet. He has stated that on 29.1.2005 on receiving the credible information about the accused Manikya, went to the spot along with PSI of Afzalpur, PSI of Gangapur and PSI of Revoor and other staff which was situated at Gobbur limits. By looking at the police officials, one person started running away from the spot and collapsed. He was in semi conscious state. As such, he was taken to Gobbur hospital, but the medical officer was 48 not available. Therefore, he was taken to Gulbarga hospital. On 2.2.2005 accused Manikya was discharged from the hospital and was brought to Afzalpur police station. The witnesses were already secured. During enquiry, the accused Manikya revealed the details of the crime committed by him stating that he alongwith Dashrath and Tanaji had gone to the farm house in the garden land at Goudgaon village, then he assaulted the person sleeping there with axe on his head and face, at that time, two ladies came there to rescue him. He assaulted one of the lady with the handle of the axe. The accused Dashrath assaulted PW-1 with knife. Thereafter, Karimani Tali chain and ear ring of the left ear, battery, cash and one axe taken by them. The voluntary statement of the said accused was recorded. Since this accused Manikya was involved in another crime No.20/2004 of Revoor Police Station, as per the information disclosed by him in Ex.P-15. The accused was taken in the vehicle along with two panchas Bhageppa and Hanmanth and 49 CW-8. The accused took them to his hut at Gobbur village and produced the articles and weapons namely axe with handle, 9-gold beats, 2-gold talies, 1-gold ear ring and one battery which were kept in plastic bag. The said articles were seized through panchanama as per Ex.P-13 ( this panchanama was also produced in Crime No.20/2004 ( SC No.284/2005 ) ). Further, he has stated on returning to the police station, the accused Manikya and articles produced by him were shown to PWs-1 and 2 the injured witnesses. They have identified the accused Manikya and informed that the said person has committed the offence and they have also identified the articles namely the axe and other gold articles which are snatched from them. They are marked as Mos-1 to 4. He has recorded the further statement of PWs-1 and 2 after identification of accused and articles. This investigating officer was cross examined at length, wherein, he has admitted that the hospital authorities had issued the discharge certificate regarding accused Manikya. The said record is produced 50 in Revoor Police station Crime No.20/2004 but the copy of the said document is not produced in this case. Several suggestions are made that the accused has not given any voluntary statement and he was not taken to any place and he has not committed any offence. But said suggestions are denied. Further, he has stated that the plastic bag produced by the accused is seized in Revoor Police Station Crime No.20/2004. But, he do not remember whether it was produced in the said crime number, he did not notice the blood stains on MO-5 Axe as the incident had taken place long back. He has admitted that the MO-1 is premier battery but the same is not mentioned in the complaint. It is denied that he has filed the charge sheet by concocting false records. The evidence of this official reveals that the accused has taken them to a place and he has produced the articles such as battery, gold articles, golden tali bears etc., which have been seized through panchanama. No doubtful 51 circumstances are forthcoming in his evidence to disprove the recovery of incriminating articles.
41. PW-17 is the PSI who has recorded the statement of one of the injured witness PW-1 Smt.Siddamma in hospital and has registered the case. Further, he has stated that the spot mazhar was conducted as per Ex.P-4 in the presence of panchas and seizure of 3-molar teeth, one towel, blood stained mud, sample mud found at the spot which are identified as Mos-6, 12, 13 and 14. When it was learnt that one of the injured by name Basanna had expired, inquest panchanama was conduced in presence of PW-3 and CW- 3 Hanmanthraya and the inquest panchanama is marked as Ex.P-3. Thereafter, he has seized blood stained blouse of PW-1 which is marked as MO-11. The clothes found on the dead body of the deceased, i.e. white shirt, dhoti, blood stained towel, underwear and terricot pant were seized through Ex.P-6 panchanama which are identified 52 by this witness as MOS-8 to 10, 14 and 15. Since the injured victim had expired, the requisition was submitted by him to the court for insertion of Section 302 of IPC.
42. In the cross examination, he has stated about the contents of complaint and further stated that on visiting the spot, he has prepared Ex.P-4, but he has not mentioned about the light. But, in the spot sketch prepared by the Engineer, PW-11 there is a mention about the light. Further, he has stated that there was blood stain on the steel cot. He has seen several type of trees but he has not mentioned the same in Ex.P-4. The incident has taken place in front of the house but it was wrongly mentioned as inside the house. Further, he has admitted that, in Ex.P-1 complaint, there is no mention that the accused have taken away axe. When he had gone to the spot for investigation, the light arrangements done there did not come to his notice. Even in the spot mahazar the light arrangements at the spot where the incident has taken place is not mentioned, but the spot sketch 53 prepared by the Engineer reveals the presence of the lighting pole.
54Even assuming that there are one or two minor discrepancies that itself is not a ground to disbelieve the entire case of the prosecution.
43. Another important aspect that has to be considered is that even if there are minor lapses in the investigation, that itself should not be the reason to disbelieve the entire case of the prosecution. It is worth to refer here a decision of the Hon'ble Apex Court reported in (2003) 6 SCC 73 between Visveswaran and State Rep. by SDM, wherein the Hon'ble Apex Court has observed that -
"Investigation - Defective investigation - Effect of - Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved - The only requirement is of extra caution by courts while evaluating evidence in such cases - Acquittal of accused 55 solely on the ground of defective investigation, held, would not be just and proper."
44. The evidence of proof beyond all reasonable doubt does not mean that there should be a perfect proof. It is the yardstick for the courts to appreciate the materials on record and to come to the conclusion that the charges are proved beyond reasonable doubt or not.
45. According to the prosecution story, the accused persons came in the night at about 03.00 a.m., and assaulted to the complainant's father with axe. By looking at such a ghastly incident of assault, both the complainant and her mother have tried to rescue him. While narrating the incident or at the time of giving complaint, some of the information such as presence of light or battery etc., may not have been mentioned and that itself cannot be considered as a doubtful circumstance. Over importance should not be attached to omission or minor contradictions which do not go to the root of the matter and shake the basic version of the 56 prosecution. It is quite possible for a witness though wholly truthful is liable to be over awed when the witnesses who are rustic villagers and ladies may get frightened because of the courts atmosphere and the piercing cross examination made by the counsel and out of the nervousness may mix up facts or may get confused regarding sequence of events. If a person witnesses a ghastly incident, we cannot expect a particular set of reaction from such a person. Each and every person reacts in a different manner on seeing such violence and conduct of the accused. In such circumstances, their evidence has to be assessed carefully.
46. As discussed above, PWs-1 and 2 eye witnesses who are the injured victims have tried to prevent the accused persons from assaulting the deceased with axe. Thereafter, the accused persons have snatched their tali chains and ear ring. As such, they had sufficient time to see the face and appearance of the accused. The 57 evidence of these two witnesses is corroborated by recovery of incriminating articles at the instance of the accused and establish the guilt of the accused beyond all reasonable doubt. Therefore, we do not find any strong reasons to discredit the evidence of injured victims and some of the prosecution witnesses as their evidence is trustworthy to believe the prosecution case.
47. Perusing the material on record and the nature of seriousness of offence, we are of the opinion that the sentence imposed by the trial court for the aforesaid offences is reasonable and proper. Hence there is no merit in the appeal.
Accordingly, appeal is dismissed. The judgment of conviction and order of sentence imposed by the trial court are hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE sdu/sgs